Patna High Court
Kamlesh Roy vs Rudra Narain Rai And Ors. on 2 January, 1981
Equivalent citations: AIR1981PAT264, 1981(29)BLJR628, AIR 1981 PATNA 264, (1983) BLJ 487 (1981) PAT LJR 38, (1981) PAT LJR 38
JUDGMENT K.B.N. Singh, C.J.
1. In this writ petition the petitioner prays for quashing a resolution of no-confidence dated 7th Oct., 1979, removing the petitioner from the office of Pramukh of Patepur Panchayat Samiti, a copy of which has been filed as Annex. 4.
2. The petitioner's case is that on 10-3-79 he was elected Pramukh of Patepur Panchayat Samiti, hereinafter referred to as "Samiti", by defeating respondent No. 4, Krishna Nandan Prasad Singh, and took oath of office on 11-3-79 but later it was found that the oath of office administered to the petitioner was not in accordance with Section 71 of Bihar Panchayat Samitis and Zilla Parishads Act, 1961 (hereinafter referred to as "the Act"), and, therefore, the petitioner had again taken oath on 11-6-79, as required under Section 71. The petitioner has averred that respondent No. 1, Rudra Narain Rai, District Development Officer, Hajipur who happens to be the samdhi of respondent No. 4, did not take the defeat of his samdhi sportingly and soon after the election of the petitioner started pressurising respondent No. 2, Paras Nath Choudhary, Prakhand Vikas Padadhikari, Patepur, to see that a vote of no-confidence was passed against the petitioner so that he may be removed from the office of Pramukh. The petitioner has also alleged that respondent No. 2 was not favourably disposed towards the petitioner inasmuch as at the instance of the petitioner an anti-corruption committee has been formed by the District Magistrate, Vaishali, of which the petitioner is a member, and the said committee is enquiring into several allegations of corruption against respondent No. 2 and some Mukhiyas.
3. The petitioner has further alleged that on 27-9-79 respondent No. 4 in league with respondents 1 and 2 sponsored a no-confidence motion which was placed before the petitioner on 28-9-79 (Annexure 1). As there were executive holidays from 28th September to 4th Oct., 1979, and 5th and 6th Oct., 1979 were declared as special holidays and 7th Oct., 1979, being a Sunday, the petitioner directed the no-confidence motion to be placed for orders on 8th Oct., 1979 (Annex. 2) as no meeting could be held on a holiday. But surprisingly enough on 4-10-79 respondent No. 2 issued a notice fixing 7-10-79 as the date of the said meeting of the Samiti to discuss the no-confidence motion signed by 18 persons of the Samiti (Annexure 3). The petitioner was not given any information about the said meeting and the said meeting should not have been held on 7th Oct., 1979, which was a Sunday and a holiday according to Rule 3 of the Bihar Panchayat Samitis and Zilla Parishads (Conduct of Business) Rules, 1963, hereinafter referred to as "the Rules". The petitioner has also alleged that the notice of the said meeting was not served on six members of the Samiti besides the petitioner, namely, Paltan Ram, M.L.A., Sushil Prasad Yadav, Tej Narain Singh, Ganga Choudhary, Srimati Jyoti Devi and Basist Rai. In spite of the aforesaid lacuna the meeting was held on 7-10-79 in which the motion of no-confidence was passed. The petitioner has averred that ten members of the Samiti, mentioned in para 13 of the petition, had not taken oath of office including respondent No. 4. The petitioner has come to know that respondent No. 3, Up-Pramukh, administered oath to some members of the samiti on 7th Oct., 1979, itself, which the petitioner characterised as illegal inasmuch as the meeting was held under Rule 5 (2) of the Rules for considering the no-confidence motion and not for administering oaths of office. On account of violation of the aforesaid mandatory provisions of the Act and the Rules, the petitioner has prayed for declaring the impugned resolution as invalid. Counter-affidavits have been filed on behalf of respondents 1 to 3 as well as on behalf of respondent No. 4 to which the petitioner has filed replies. They will be referred to in so far as they are relevant.
4. At the outset a preliminary objection has been raised by Mr. Balbhadra Prasad Singh, learned counsel appearing on behalf of respondent No. 4, that the petitioner having an alternative remedy to move the State Government for cancelling or suspending the impugned resolution, this writ petition is not maintainable. It is true that the State Government may annul any resolution passed by the Panchayat Samiti in the circumstances mentioned in Section 68 of the Act but the existence of such a discretionary right with the State Government cannot defeat the petitioner's right to move this Court under Article 226 of the Constitution, as it now exists, on the allegation that he had been wrongfully removed from the office of Pramukh, which he is entitled to hold, in defiance of the provisions of the Act and the Rules.
5. Mr. Ram Bihari Singh, learned counsel appearing on behalf of the petitioner, has urged that the petitioner having taken oath on 11-6-79, required by Section 71, as the previous oath administered on 11-3-79 was defective, the no-confidence motion could not be moved against the petitioner as laid down in Sub-section (4) of Section 32 of the Act. The fact that the petitioner had to take the second oath as the first oath was defective is admitted in para 4 of the counter-affidavit filed on behalf of respondents 1 to 3 to the effect that some technical errors were found in the form of oath and, therefore, it was administered in the meeting of the Samiti to regularise the previous oath. Section 71 of the Act lays down that every member of the Panchayat Samiti shall, before taking his seat, make and subscribe at a meeting of the Panchayat Samiti an oath or affirmation according to the following form, namely :--
"I. A. B. having become a member of the Panchayat Samiti/Zilla Parishad standing committee of the Panchayat Samiti/Zilla Parishad swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."
Sub-section (2) of Section 71 lays down:
"No such member shall take his seat at a meeting of the Panchayat Samiti or of the Zilla Parishad, as the case may be, or do any act as such member unless he has made and subscribed the oath or affirmation in accordance with the provision of this section."
In the counter-affidavit filed on behalf of respondent No. 4 the form in which the first oath was taken is mentioned in para 4 and it runs as follows:
"I, A. B. do swear in the name of God/ solemnly affirm that I will bear true faith and allegiance to the Constitution of India by law established, that I will do right to all the members of people in accordance with the provision of the Act and that I will faithfully and consciously discharge the duties upon which I am about to enter without fear or favour, affection or ill-will."
Reading the two forms of oath it is apparent that the oath taken on 11-3-79 by the petitioner was not in pursuance of the oath prescribed in Section 71 of the Act, that is, as to the capacity in which he was taking oath, namely, whether as a member of the Panchayat Samiti or Zilla Parishad Standing Committee of the Panchayat Samiti or Zilla Parishad. The provision with regard to taking oath as laid down in Section 71 of the Act is clear and explicit that no member shall take his seat or do any act unless he subscribes oath in a particular form.
6. Mr. Balbhadra Prasad Singh, learned counsel appearing on behalf of respondent No. 4, has submitted that the oath taken on 11-3-79 was in substance an oath as prescribed under Section 71 of the Act. In my opinion, there is no substance in this submission. The oath taken on 11-3-79 does not mention the capacity in which the petitioner was taking oath and it did not conform to the provision of Section 71 and as such it was no oath in the eye of law. Mere functioning of the petitioner will not validate the invalidity in taking oath nor can it validate his having assumed the office of Pramukh. The oath, therefore, taken on 11-6-79 will be the proper oath after which the petitioner can be said to have assumed his seat as a member of the Panchayat Samiti and started acting as the de jure Pramukh of the Samiti. The oath is not an empty formality but it means to bind one subscribing to the oath as Pramukh of the Samiti. As provided under Section 71 before a member takes his seat he must subscribe oath in the form as mentioned in that section and it also forbids a member, who has not taken such oath, from taking his seat at a meeting of the Panchayat Samiti or to do any act as such member unless he has made and subscribed the oath or affirmation in accordance with the provision of this section. There is also no substance that the oath taken on 11-6-79 will relate back to 11-3-79. It must, therefore, be held that the petitioner lawfully assumed the office of Pramukh of the Samiti on 11-6-79 after taking valid oath as a member of the Samiti. The fact that the petitioner was required to take oath as a member of the Samiti as required by Section 71 of the Act has been admitted in the counter-affidavit filed on behalf of respondents 1 to 3 and has not been disputed before us by learned counsel for the respondent. Thus the oath taken on 11-6-79 will be effective from that date and will not relate back to 11-3-79. Mere de facto functioning will not be lawful assumption of office of Pramukh as required by law which was a condition precedent to such an assumption. The result will be that no notice of no-confidence motion could be made against the petitioner within six months of assumption of office as Pramukh under Sub-section (4) of Section 32 of the Act which reads as follows:
"No notice of a motion under this section shall be made within six months of assumption of office by a Pramukh or Up Pramukh as the case may be."
Consequently the notice of no-confidence motion dated 27-9-79 (Annexure 1) and the notice dated 4-10-79 (Annexure 3) would be premature and no-confidence motion could not be passed in pursuance thereof. Therefore, both the notices as also the resolution (Annexure 4) are hit by Section 32 (4) of the Act and are illegal and must be quashed.
7. Learned counsel on behalf of respondent No. 4 has relied on two decisions of the Supreme Court, namely, K. Kamaraja Nadar v. Kunju Thevar (AIR 1958 SC 687) and Ch. Subbarao v. Election Tribunal, Hyderabad (AIR 1964 SC 1027), in support of his submission that the oath taken on 11-3-79 should be deemed to be sufficient compliance with the provision of Section 71 of the Act and the provision in this regard is directory and not mandatory. In the first case the question for consideration was with regard to Section 117 of the Representation of the People Act relating to deposit of security for the cost of an election petition. The only lacuna in the deposit was that it was not stated to be in favour of the Secretary to the Election Commission. Their Lordships of the Supreme Court held that the provision of Section 117 was directory and not mandatory. The essence of the provision contained in that section is that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him cither in a Government Treasury or in the Reserve Bank of India which was at the disposal of the Election Commission to be utilised by it in the manner authorised by law and was under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or anyone else. In the instant case there was no mention of the office in respect of which the oath was taken by the petitioner on 11-3-79. Such an omission goes to the root of the oath itself and it cannot be said to be a non-mandatory provision of Section 71 of the Act.
8. In the other case reported in AIR 1964 SC 1027 the question was of non-compliance with the requirements of Section 81 (3) of the Representation of the People Act which lays down that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and one more copy for the use of the Election Commission and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The election petition that was filed was typewritten and the copies which accompanied the petition were carbon copies of the typescript. The copies bore two signatures in original of the election petitioner authenticating both the contents of the petition as well as the verification thereof. In the copies of the petitioner, however, did not insert the words "true copy" before or above his signature. The High Court rejected the election petition. The Supreme Court reversing the decision of the High Court held that there was substantial compliance with the requirement of Section 81 (3) and mere omission of the words "true copy" was not fatal to the election petition. The above two decisions are of no assistance to learned pounsel for respondent No. 4 inasmuch as Section 71 of the Act requires clearly to state the capacity in which the oath was being taken, which is vital before assumption of the office. The provision of Section 71, therefore, in this regard is mandatory and not directory.
9. Another argument advanced by learned counsel on behalf of the petitioner as to the invalidity of no-confidence motion dated 7-10-79 may be noted. Learned counsel has urged that Rule 3 of the Rules forbids holding of any meetings on a holiday. The said rule reads as follows :
"Every Samiti/Parishad shall meet at least once in every two months for the transaction of business upon such days not being holidays and such hours of the day as it may arrange and also at other times as often as a meeting is called by the Pramukh of the Samiti Adhyaksha of the Parishad."
Rule 5 (1) lays down that there should be clear ten days' notice for a meeting and in case of urgency a shorter notice can be given but at such a meeting items of routine business will not be discussed as per Rule 5 (2). Rule 7 lays down that the Pramukh shall call for a special meeting including the meeting for considering no-confidence motion Within seven days of the receipt of the request in writing signed by not less than one third of the total number of members of the Samiti specifying the resolution which it is proposed to move and if the Pramukh does not call the meeting the Block Development Officer or the Secretary shall call the meeting within three days thereafter. In the instant case when the first notice was given to the petitioner on 28-9-79 he ordered it to be placed on 8-10-79 as from 28th September to 7th Oct., 1979, there were holidays. In the meantime a special notice was given by respondent No. 2 on 4-10-79 fixing the meeting on 7-10-79 which was a holiday. It was hit by Rule 3 as no such meeting could be held on a holiday. The rules have been framed under Section 75 of the Act for carrying out the purposes of the Act and it requires to be laid before each House of the Legislature for a total period of 15 days. The rules thus being statutory rules have the same force as the provisions of the Act. Rule 3 being a complete embargo on a meeting being held on a holiday, the meeting held on 7th Oct., 1979, was against the express provision of Rule 3. It is somewhat surprising as to how a responsible officer like respondent No. 2, the Prakhand Vikash Padadhikari, who is expected to be aware of the provisions of the Act and the Rules, could overlook this provision of law and call a meeting on a holiday. The assertion of the petitioner in para 15 of the petition that no such meeting could be called has not been clearly controverted in para 14 of the counter-affidavit filed on behalf of respondents 1 to 3 as to how the meeting could be held on a Sunday. All that is stated is that the statement in para 15 is not correct in view of the provisions of the Conduct Rules. Learned counsel on behalf of the petitioner has also urged that in order to forestall the order that might be passed by the petitioner on the 8th Oct., 1979, that the meeting was called on the 7th Oct., 1979, which was a Sunday, to help respondent No. 4, who is saradhi of respondent No. 1. It is needless to go into this question for deciding this case. It is also not necessary to go into the question raised by learned counsel for the petitioner that there was no service of notice of no-confidence on many of the members.
10. In the result, this application is allowed and the resolution as contained in Annexure 4 is quashed. In the circumstances, there will be no order as to costs.
M. P. Singh, J.
11. I fully agree.